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HomeMy WebLinkAbout2009-2047.Moore.13-04-26 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2009-2047 UNION#2009-0376-0018 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Moore) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Randi H. Abramsky Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Justin Diggle Liquor Control Board of Ontario Counsel CONFERENCE CALL April 23, 2013. - 2 - Decision [1] A number of issues stemming from the remedial award issued in this case arose. Despite substantial efforts, the parties were unable to resolve them. Accordingly, a conference call was arranged for the parties to argue their respective submissions. [2] The first issue is whether the grievor, Ms. Moore, should be treated, in regard to the damages in lieu of reinstatement, as if she had worked from her termination (August 27, 2009) to the date of the Award on the merits (August 11, 2011). She argues that she should be paid at a full-time CSR rate, rather than as a casual, because if she had worked during this time period, she would have become a full-time CSR. She asserts that, prior to her termination, she had applied for full-time positions, as they became available, and that she was next in seniority to obtain such a position at the time of her termination. [3] The second issue also pertains to the rate of pay. Ms. Moore was terminated on August 27, 2009. The parties had just ratified a new collective agreement with an increase in wage rate, effective September 1, 2009. She submits that the damages should therefore be based on this higher wage rate. [4] Having considered the facts and positions of the parties, I conclude that the damages in lieu should be based on the casual CSR rate (not a full-time rate) and calculated based on the wage rate that the grievor received at the time of her termination. [5] The Board determined, in the August 11, 2011 decision, that the Employer did not have just cause to terminate the grievor. Normally, this would have included an order to - 3 - reinstate the grievor, with back pay – less any interim earnings and subject to the duty to mitigate. The grievor, however, did not want to go back to work for the LCBO – even at a different location and under a different manager. Had she done so, her back pay would have been calculated at the rate then in effect, which would have included the salary increase. But she did not choose to return. Instead, she sought back pay and damages in lieu; she wanted both. The parties’ presented significant legal argument on this issue. [6] Having reviewed their submissions, I determined, at par. 16 of the remedial Decision issued on September 20, 2011, that “it would not be appropriate to order both back pay and damages in lieu of reinstatement in this matter.” There was “no finding that the employment relationship is no longer viable based on the Employer’s conduct.” Instead, as set out in par. 20, the grievor determined that reinstatement was not an option for her. Accordingly, because she decided she did not want to return to work, no back pay was owing. The only issue was the amount of the damages in lieu. Consequently, because what was ordered was damages in lieu of reinstatement – and not back pay – the wage increase that took place on September 1, 2009 did not apply. [7] Nor can I find that the grievor should be paid as if she would have become a full-time employee had she not been improperly terminated. That is speculative, although I understand why the grievor feels that it would have happened. The grievor’s contentions mix apples (back pay and make “whole” type issues) and oranges (damages in lieu of reinstatement issues). She declined the opportunity to return to work - perhaps with good reason, but the decision still has consequences. She cannot assert that she should be treated as if she continued to work (and thus - 4 - would have become a full-time CSR) when she declined reinstatement. As determined in the earlier Decision, she was to be paid damages in lieu of reinstatement. [8] In the earlier decision, I determined at par. 22 that the grievor’s damages in lieu of reinstatement should be based on 1.25 months per year of service, which was to be rounded up to seven months, and that “the average monthly pay received by the grievor in the time prior to her termination should be used in the calculation, which would include overtime and any premium payments.” Where damages in lieu of reinstatement are ordered, the relevant pay is calculated on her earnings at the time of the termination – not on what might have received had she continued to be employed. [9] I understand that the grievor feels that she should be treated as if she continued to work for the time between her termination and the Decision on the merits – until she decided not to return to work. In terms of pay, that would have happened had she elected to return to work, then resigned from her position. But that, for better or worse, was not the choice she made. [10] Accordingly, for these reasons, I cannot agree that the grievor’s damages in lieu should be based on the higher CSR rate that took effect on September 1, 2009 or on the basis that should would have become a full-time CSR if she had not be wrongfully terminated. - 5 - [11] In terms of the Employment Insurance issues raised during the conference call, I find that I do not have jurisdiction over that issue. Dated at Toronto this 26th day of April 2013. Randi H. Abramsky, Vice-Chair